2019 PLP 301 (SCMR)

ASIF SAEED KHAN KHOSA, J.

Criminal Appeal No. 105-L of 2017 Majeed alias Majeedi appellant and two others had allegedly committed a robbery at about 09.15 p.m. on 11.02.2008 in an open area within the jurisdiction of Police Station Shahbore, District Okara and during commission of the said robbery they had allegedly killed one Muhammad Amin and had injured three others namely Aslam Pervaiz complainant (PW1), Muhammad Umar (PW2) and Abdul Jabbar (PW3). With these allegations the appellant and his co-accused were booked in case FIR No. 33 registered at the above mentioned Police Station during the same night and after a regular trial the appellant was convicted by the trial court for an offence under section 302(b), P.P.C. read with section 34, P.P.C. and was sentenced to death and to pay compensation besides having been convicted and sentenced for an offence under section 392, P.P.C. as well as on three counts of an offence under section 394, P.P.C. The appellant challenged his convictions and sentences before the High Court through an appeal which was partly allowed, the conviction of the appellant for the offence under section 302(b), P.P.C. read with section 34, P.P.C. was upheld but his sentence of death on the said count of the charge was reduced by the High Court to imprisonment for life, the conviction and sentence of the appellant for the offence under section 392, P.P.C. were set aside and instead he was convicted on four counts of the offence under section 397, P.P.C. and was sentenced to imprisonment for life on each such count. Hence, the present appeal by leave of this Court granted on 20.02.2017.

2. We have heard the learned counsel for the appellant, the complainant appearing in person and the learned Deputy Prosecutor-General, Punjab appearing for the State and have gone through the record of the case with their assistance.

3. The occurrence in issue had taken place at 09.15 p.m. in the month of February and the place of occurrence was a roadside surrounded by fields and crops with no habitation anywhere close to the spot. The complainant appearing before us in person has informed that during the fateful night there was dense fog in the area and the culprits had not been identified by the complainant party at the place of occurrence. The appellant had not been nominated in the FIR and according to the prosecution he was implicated upon his own disclosure allegedly made before the local police when he had been arrested in connection with some other case. In one breath the complainant stated before us in clear terms that at the time of making of such a disclosure by the appellant before the police the complainant was himself physically present and it was before him and the local police that the appellant had confessed his guilt but in the next breath the complainant withdrew that statement and stated that he was not present with the local police when the appellant had allegedly made a disclosure regarding his involvement in the present criminal case. In this backdrop we have become quite cautious in placing a whole hearted reliance upon the statement made by the complainant party before the trial court.

4. According to the prosecution the appellant had been correctly identified by four eye-witnesses during a test identification parade conducted by a Magistrate who had appeared before the trial court as PW-17. We have noticed that the said parade had been conducted after more than two months of the alleged occurrence and the proceedings of the said parade show that the eye-witnesses had maintained before the Magistrate on that occasion that the culprits had their faces muffled during the incident in issue. It has already been observed above that the incident in question had taken place during a night in which the area in question was engulfed in dense fog, the culprits committing the alleged offences were not previously known to the complainant party and at best the members of the complainant party could only have a fleeting glance at the culprits when the occurrence was in progress. The record of the case shows that the proceedings of the parade were postponed twice before they were actually conducted and on all such occasions the investigating officer had requested for a postponement because the eye-witnesses belonging to the complainant party had failed to turn up. Apart from that the proceedings of the parade available on the record show naked interpolations vis- -vis the roles attributed to different accused persons and such interpolations were not only in different ink but also in different handwriting. Before the trial court the concerned Magistrate had stuck to his stand regarding correctness of the proceedings of the parade available on the record whereas the eye-witnesses belonging to the complainant party had maintained that the said proceedings had been interpolated with and they did not reflect the correct state of affairs. Be that as it may if the eye-witnesses belonging to the complainant party and the Magistrate produced by the prosecution were themselves at loggers head regarding authenticity of the proceedings of the parade then the said proceedings had become quite doubtful and were not worthy of implicit reliance. At any rate, in the test identification parade the complainant and two other eye-witnesses had maintained that the appellant had only searched the complainant and some others during the alleged occurrence and they had not attributed any role to the appellant regarding causing of murder of the deceased or causing injuries to others but another eye-witness belonging to the complainant party had maintained that the appellant had also fired at the said witness causing an injury on his lip. Such a conflict between the stands of the eye-witnesses produced by the prosecution vis-a-vis the appellant's role by itself was sufficient to create serious doubts about veracity of the said witnesses.

5. The prosecution had also maintained that during the trial the appellant had been identified by the eye-witnesses before the trial court but this Court has repeatedly held that identification of a culprit before the trial court during the trial is generally unsafe because the members of the complainant party get many opportunities to see the accused persons before the trial court on many previous occasions before making their depositions. In the present case different eye-witnesses had attributed different roles to the appellants before the trial court and, thus, such identification of the appellant has failed to inspire our confidence.

6. During the investigation a sum of Rs. 700/- in cash had allegedly been recovered from the appellant's custody and it was also alleged that he had led to recovery of pistol .12 bore but both such recoveries had been ruled by the High Court out of consideration because the recovered cash never stood connected with the robbed amount and in. the absence of any crime-empty having been secured from the place of occurrence the recovered pistol was not of much avail to the prosecution.

7. For what has been discussed above a conclusion is inescapable that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. This appeal is, therefore, allowed, the convictions and sentences of the appellant are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required to be detained in connection with any other case. Criminal Petition No. 91-L of 2018

8. As the petitioner has been acquitted by this Court upon acceptance of his Criminal Appeal No. 105-L of 2017, therefore, this petition seeking suspension of his sentence has lost its relevance. Disposed of. Criminal Petition. No. 923-L of 2014

9. As respondent No. 2 namely Majeed alias Majeedi has been acquitted by this Court upon acceptance of his Criminal Appeal No. 105-L of 2017, therefore, this petition seeking enhancement of his sentence has lost its relevance. Dismissed. MWA/M-1/SC Order accordingly.